Opinion
Nos. 110,898 110,899.
2014-10-3
STATE of Kansas, Appellee, v. Delron Lamont TYREE, Appellant.
Appeal from Shawnee District Court; Cheryl Rios Kingfisher, Judge.Corrine E. Johnson, of Kansas Appellate Defender Office, for appellant.Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Shawnee District Court; Cheryl Rios Kingfisher, Judge.
Corrine E. Johnson, of Kansas Appellate Defender Office, for appellant. Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Before, Bruns, P.J., Pierron and Powell, JJ.
MEMORANDUM OPINION
PER CURIAM.
Delron Tyree appeals from the district court's order assessing BIDS attorney fees without meeting the requirements of State v. Robinson, 281 Kan. 538, 132 P.3d 934 (2006), and contends the district court violated his Sixth Amendment rights under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), when it used his prior convictions to increase his sentence. While we agree that the district court's assessment of the BIDS attorney fees must be vacated in light of Kansas Supreme Court precedent, we affirm Tyree's convictions and the district court in all other respects.
Facts
In November 2012, Tyree pled no contest to a number of drug offenses in Shawnee County District Court cases 12–CR–2300 and 12–CR–2306, which had been consolidated for plea purposes. At Tyree's sentencing on August 6, 2013, the district court asked if either party had any objection to the presentence investigation report or the criminal history score of A. There was no objection from the State or Tyree. Tyree asked the district court to waive the attorney fees. The district court asked Tyree, “[D]o you have income from any source at all?” Tyree informed the district court he did not currently have any income.
The court sentenced Tyree to a total of 46 months' imprisonment on both cases with a period of postrelease supervision of 24 months. In addition, the district court imposed court costs in the amount of $171 plus a $22 surcharge fee for each case. In 12–CR–2300, the district court imposed a KBI lab fee, a BIDS application fee, and reduced BIDS attorney fees of $250. In 12–CR–2306, the district court imposed a KBI lab fee and a BIDS application fee but waived the BIDS attorney fees.
Tyree timely appeals.
Did the District Court Err when it Ordered Tyree to Reimburse BIDS for Attorney Fees?
On appeal, Tyree claims the district court erred in ordering him to reimburse BIDS for attorney fees without explicitly stating on the record the nature of the burden the payment would impose and how the burden and Tyree's finances factored into the district court's decision. See Robinson, 281 Kan. at 546. The State contends that following an inquiry into Tyree's finances, the district court made an informed decision in conformity with K.S.A. 22–4513 when it imposed a reduced amount of attorney fees in 12–CR–2300 and waived attorney fees completely in 12–CR–2306.
K.S.A. 22–4513 provides for the reimbursement of BIDS attorney fees by convicted criminal defendants. Determining whether the court complied with the requirements of K.S.A. 22–4513 is a matter of statutory interpretation. Interpretation of a statute is a question of law subject to unlimited appellate review. State v. McCurry, 279 Kan. 118, 121, 105 P.3d 1247 (2005). Sentencing courts, at the time of the initial assessment of BIDS attorney fees under K.S.A. 22–4513, must consider the financial resources of the defendant and the nature of the burden that payment will impose, explicitly stating on the record how those factors have been weighed in the court's decision. Robinson, 281 Kan. at 546. The remedy for a sentencing court's failure to make explicit findings is to remand the case to the sentencing court for such findings. 281 Kan. at 548.
In this case, the district court did briefly question Tyree regarding his financial resources following a request from Tyree to waive attorney fees. The district court asked Tyree: “[D]o you have income from any source at all?” Tyree responded: “Not now, I don't.” Upon Tyree's response, the district court moved directly to sentencing without explicitly stating on the record how Tyree's financial resources and the burden the attorney fees would impose on Tyree factored into its decision on the amount of attorney fees imposed.
Because we are bound by Supreme Court precedent, see State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. 946 (2012), we must conclude that the district court's inquiry falls short of the requirements mandated by the Kansas Supreme Court in Robinson. We are therefore required to vacate the district court's assessment of the BIDS attorney fees and remand the case to the district court to consider, on the record, Tyree's financial resources and the burden imposed by the assessment of BIDS attorney fees.
Did the District Court Err When It Increased Tyree's Sentence Based on His Criminal History?
Tyree's final argument is that the use of his criminal history to calculate his guidelines sentence was unconstitutional since his past convictions were not proved in this case to a jury. See Apprendi, 530 U.S. 466. Our Supreme Court has rejected this argument, and we reject it as well. See State v. Baker, 297 Kan. 482, 485, 301 P.3d 706 (2013); State v. Ivory, 273 Kan. 44, 46–47, 41 P.3d 781 (2002).
Affirmed in part, vacated in part, and remanded for assessment of BIDS attorney fees pursuant to K.S.A. 22–4513.